State v. Ownby

• Decision Date: 25 May 1908
• Citation: State v. Ownby, 146 N.C. 677, 61 S.E. 630 (N.C. 1908)
• Parties: STATE v. OWNBY.
• Court: North Carolina Supreme Court

61 S.E. 630

146 N.C. 677

STATE v. OWNBY.

Supreme Court of North Carolina

May 25, 1908

Appeal from Superior Court, Buncombe County; Peebles, Judge.

Eugene Ownby was convicted of embezzlement, and he appeals. New trial granted.

In a trial for embezzling an employer's funds, an instruction that the employer and an employee, both of whom testified to facts tending to show defendant's guilt, were "not interested one cent in the result of this suit. It makes no difference how it may go with them"--was prejudicial error, as an instruction upon the weight of the evidence.

Zeb. F Curtis and Craig, Martin & Winston, for appellant.

The Attorney General, for the State.

WALKER J.

The defendant was indicted for embezzlement. The particular allegation in the indictment was that the defendant, while in the service of R. M. Ramsey, trading under the name of the Asheville Dray & Fuel Company, embezzled the sum of $100. The defendant was convicted and sentenced to be imprisoned four years in jail, "and assigned to the commissioners of the county, for said term, to be worked on the public roads," and adjudged to pay the costs. From the judgment of the court he appealed.

R. M Ramsey and G. W. Davis, an employé of Ramsey, testified in the case to facts tending to show the defendant's guilt. The only exception we will consider is the following "The court erred in charging the jury as follows 'Ramsey and Davis are not interested one cent in the result of this suit. It makes no difference how it may go with them. I believe the defendant proved a good character and when you consider his testimony, it is your duty to take that into consideration."' It appeared that Ramsey had applied to a magistrate for a warrant against the defendant, and he was really the prosecutor in the case. But whether he was or not, we think the instruction, to which exception was taken, was an expression of OPINION upon the facts or rather upon the weight of the evidence. It was for the jury, and not for the court, to determine what, if any, interest the witnesses Ramsey and Davis had in the case. The jury might very well have found that Ramsey was very much interested in securing the defendant's conviction. He was not, technically speaking, a party to the record; but if the defendant had been acquitted, and the judge should have found "that there was not reasonable ground for the prosecution, or that it was not required by the public...